Posted
by
ScuttleMonkey
on Tuesday October 28, 2008 @12:40AM
from the not-perfect-the-understatement-of-the-year dept.

mattOzan writes "On the tenth anniversary of the Digital Millennium Copyright Act [PDF], Wired Magazine posits that the DMCA should be praised for catalyzing the interactive '2.0' Web that we enjoy today. While acknowledging the troublesome 'anti-circumvention' provision of the act, they claim that any harm caused by that is far outweighed by the act's "notice-and-takedown" provision and the safe harbor that this provides to intermediary ISPs. Fritz Attaway, policy adviser for the MPAA weighed in saying 'It's not perfect. But it's better than nothing.'"

It's true, the notice-and-takedown is a bitch for the user but without the safe harbor that it provides, the service providers would do a lot more validation and the web 2.0 would not be so user oriented.Now the DMCA applied to hardware makes me scream so it's not perfect but the safe harbor is one thing that they got right.

Nobody prusues it because congress knew the clause was a joke when they made it a part of the law. I can not find one instance where perjury charges have been brought against false and/or purely malicious DMCA take-down notices. The reason being is that the DCMA being a federal law, your local/state DA doesn't care, and good luck getting the feds to ever go after corporate corruption, unless they aren't paying their taxes.

Everyone misunderstands that clause. The penalty is not perjury if you don't own the copyright. The penalty is perjury if you didn't have a "good faith" belief that you own the copyright. So if you send your take-down to something that has a similar name to your movie, you can prove that you had a "good faith" believe that it was your movie, even if it was something else.

THAT is why nobody pursues it. It's almost impossible to prove that the person did committed perjury. They really need to fix that clause because, as it stands, it's completely toothless.

Perjury is for lying. If you had a good faith belief, you didn't lie, and certainly shouldn't be convicted of perjury. Your absurdly low standard would mean anybody could be trapped into perjury conviction.

No, it would mean that content creators/owners would have to actually consider whether there's any evidence that their takedown notice is legitimate, and wouldn't be allowed to shotgun out thousands of takedowns at a time.

The DMCA allows anyone to issue a takedown notice of anything, without any proof that it's infringing, and requires the person who uploaded the content (or the accused, in cases of filesharing) to reveal his identity in order to contest the claim.
Scientology has used this to censor criticism from those who want to remain anonymous. The RIAA uses it to bully college students who are better off taking the blame for copyright infringement even if they are innocent rather than revealing their identities so they can be sued without a subpoena.
ISPs should not be liable for what their customers do with that connection at all. Why is the DMCA, which makes ISP liability contingent on responses such as "terminating repeat offenders" and taking down content without any proof of copyright infringement a good thing?

It is absolutely critical, in many cases, to conceal the identity of the accused. Otherwise, political and satirical material, which is some of the most protected speech, may be blocked by fears of discovery for using completely 'Fair Use' quotes or video, and taken down immediately and with little recourse with fraudulent 'DMCA' notices.

The fact that is dissociates action from responsibility, and in this context, allows the speaker to break the law with impunity.

I don't believe in absolute free speech either — and neither does any contemporary legal system that I know of — but in any case, if something is important enough to broadcast to the world like this, then it is important enough to put your name to.

Under your system any and all potential whistleblowers would never come out ever again because of the retribution they would receive as they were no longer being protected against the actions of their superior. Great system, dude.

What do you have against people being able to publicly confront their accusers and be confronted in turn?

Not everyone has the courage to stand by what they say. That doesn't mean they don't have a right to say it, and it doesn't mean what they want to say is unimportant. Sure, anonymity brings out the worst of the population, but if we allow it to continue, perhaps we will also see it coax out the best.

This can also be turned around to say: If something is incorrectly stated, why do you need to confront the person when you can confront the falsehood instead? Isn't it more important to discern what's right

Trouble is, the DMCA is two laws rolled into one. On the one hand you have the way hosting sites such as Youtube are not held responsible for copyright violations of user-uploaded content so long as they immediately withdraw material on allegation of infringement. This is what the article is saying is responsible for current sites such as Youtube, MySpace and others. This is a supportable argument (i.e. you may or may not agree with it, but there is certainly a case to be argued). On the other hand, you have the restrictions on circumvention technology. An entirely distinct law that most people here would probably agree is far less supportable from the viewpoint of social good. Yet these two very different things have been rolled into one, probably to increase the chances of getting the latter part passed. This has the effect of making it much harder to evaluate or debate the DMCA law in the USA.

From the article: "President Clinton signed into law exactly a decade ago Tuesday."

Well good job Bill! (cheers). By the way, you're the same joker who signed into law the Gramm-Leach-Bliley Act, which repealed a portion of the Glass-Steagall Act of 1933 (forbidding banks from speculating in stock markets), and thereby caused the current housing mess & rampant bank failures of 2007-8 and approximately 1.5 trillion in taxpayer bailouts to the rich fat cats on Wall Street (corporate welfare).

If the 1999 act had not repealed the provision about banks speculating in stocks, the banks that collapsed this past year would still be standing, because they would have been almost-completely unaffected by the stock market fall.

>>>Bill couldn't have vetoed that bill since it was passed as a veto-proof majority.

That's not how it works.

- the Congress passes a bill- the president vetoes it- the Congress has a SECOND 66.7% vote to pass the bill. In the interim some members particularly Democrats, in

You are crazy if you think Glass-Steagall's repeal caused the financial meltdown. I challenge you to name just one bank that failed because an otherwise sound deposit and lending structure was undercut by anything other than the housing meltdown ruining their otherwise sound lending structure.

The truth is that the meltdown in credit was caused by the meltdown in housing; taking banks and the counter-parties in credit default swaps down further than the market expected they could reasonably go. This c

Well the alternative before the DMCA safe harbour is that sites like Youtube would be held accountable for every single copyright violation on them. Think about that for a moment before you go calling someone a moron. The DMCA is far from perfect but, as was previously stated, is better then nothing for certain cases.

as long as someone thinks the DMCA actually improves things i'll call them a moron. Lets get one thing straight, websites like youtube weren't ever responsible for content posted on them (nor should that have been) and you don't NEED the DMCA to make that happen. you certainly don't need the DMCA for that just as we don't need it being used by printer manufactures to shut down generic ink cart makers because they are circumventing some crappy content protection scheme.

The kind of moron who'd prefer to have big corporations blowing away individual websites whose content can be reposted anonymously than to have it such high liability to be an ISP that no-one can afford it? I know I'd prefer to be able to pay $5/month to have my simple website hosted than have to pay $50/month to cover the ISP's insurance in case someone posts a pop song on their personal site.

In many of those countries there have been serious issues with this. Various (e.g. German) Wikipedias have to be much more careful than the English edition since their contributors are mostly in their home countries. Look at the cases in Europe against Google's image cache and news headlines systems. I think these problems would have been much worse if there wasn't clear competition from the US which makes it clear to judges that if they make a stupid judgement, services will simply move offshore to comp

It's like a car analogy. Even a good one is still bad and serves to confuse the issue more than it does enlighten people. And then you have everyone picking on your car analogy because they don't actually understand what an analogy is... "But a car has wheels! I don't understand."

Have you ever noticed that after you have used the word 'analogy' more than a few times you start to wonder if you spelled it right? And wonder if it's even a

I don't think you understood it. If the choice for Comcast is to fight a costly legal battle every time they get a copyright cease and desist, or simply obey it and throw you under a bus, which do you think is more likely?

It's kind of like praising No Child Left Behind. Something like it was necessary, but did we have to have the result?

In an economy where knowledge, software, and creative work is paid for, you do have to have some legal protection for those works. Despite what some may wish, this isn't a Brave GNU World where everything is free as in give it all away. People want paychecks.

That said, what we desperately need is a system that both protects the copyright of these works, and allows common sense fair use for the end customer. We don't have that with a Wild West kind of no-copyright system, and we don't have that with the DMCA.

your confused, GPL doesn't mean it has to be free. i can sell my work under the GPL and not provide public access to it at all, i just have to give the source to people who buy it off me that's all. remeber it's distribution that triggers the requirement for providing the source, nothing else.

In an economy where knowledge, software, and creative work is paid for, you do have to have some legal protection for those works.

What you need is a way to incite people to add something valuable to the public domain.

Some create for their own benefit and share for the betterment of all. Some create and set free to drive up demand for a product or service they offer. But often (not always!) someone needs to pay the creator.

Say, for the sake of argument, that we all get taxed some more, and the Science and Useful Arts Council hands out contracts (i.e. money) to worthy applicants to produce a work. Upon completion, the work enters the

In an economy where knowledge, software, and creative work is paid for, you do have to have some legal protection for those works. Despite what some may wish, this isn't a Brave GNU World where everything is free as in give it all away.

The question is: if such protections didn't exist, and every piece of "intellectual property" would thus be created either because someone wanted to or someone wanted it to exist enough to pay someone else to make it, would the world be better or worse off ?

People want paychecks.

At this point, I wonder if we'd be better off by repealing the copyright laws and simply paying the MAFIAA an annual "protection" cost equal to its current profits. The MAFIAA would get its paycheck, we'd end up paying less money overall due to less waste, and get rid of the perverting effects the copyright cartels have on our society and technology (such as DRM). It would be a net win for everyone.

That, or we could simply point out that people wanting to be paid doesn't mean that they should be. Unless, of course, I'm entitled to be paid every time someone views this comment.

I personally think we'd be best off just going back to the original terms that we had back in 1790. It provides copyright protection for a full third of an average artist's life, for crying out loud, and I believe it was a fair balance keeping 100% in spirit of what the Copyright Clause was trying to achieve. Why is it not enough to exclusively profit from a work for that long, and why is the artist's individual right to profit for the rest of his fricking life considered more beneficial than the right of

The DMCA is an umbrella act of at least five different acts (well, four and a few miscellaneous stuff). The article's praise is for the Online Copyright Infringement Liability Limitation Act, whereas most of the criticism over the past decade is actually aimed at the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

I've always felt like the DMCA is like an authority figure that tries to sound lenient by saying, "You know, we could have made it a lot worse..." or "Aren't you thankful you can still have your toys/music?"

Not one user ever says, Gee, I wish that today I could do *less* with my music today than I could yesterday.

The DMCA is a corporation-driven, draconian rule that is abused on both sides, by the enforcers and the afflicted. Increased government regulation is rarely the answer to any of our societal/economic ills, much less so in the case of digital media.

A variant of the DMCA that merely granted ISPs the safe-harbor in exchange for identifying who placed the content online, and required a court order from a federal judge for a takedown, would have worked just as well in terms of enabling content hosting providers like YouTube. The RIAA and MPAA would certainly have not liked it. So while the safe-harbor aspect of the DMCA certainly had its benefits, other aspects of the DMCA clearly do not.

It's time to make some revisions on the DMCA, such shortening the takedown period, and requiring a federal judge's temporary restraining order to extend it. There should also be a minimum base damage liability for a false or fraudulent takedown (I propose $250 per day). Thus, even for individuals not making any money from content, there is something to recover from all those embarrassing days their content was gone. There should also be $25 processing fee paid to the ISPs per takedown. No more freebies.

I'm sure a lot of people reading this would argue that it should just go away. Well, that is very unlikely to happen.

So if not for a draconian law that takes away fair use rights and introduces excessive and harsh penalties for minor infringements, we wouldn't have a buzzword laden technique for dynamically changing the content on a web page withuot a full refresh.

I don't think I've heard anything this absurd, even on slashdot, in quite some time.

User-generated content would not have had a place to flourish if it were not for the safe harbor provisions of the DMCA. You'd have a hard time arguing with that. Any person who is not a member of of the **AA agrees that many of the copyright infringement rules included in it are crap. But it is certainly plausible to argue that benefit of user-generated content outweighed the impacts of draconian rules on DeCSS, etc.

Really, so YouTube wouldn't have been sued into oblivion without the DMCA safe harbor? Without the DMCA, any website that could have possibly allowed for copyright infringement would never have existed in the United States. Slashdot comments that were copies of the article would likely have resulted in Slashdot being sued by the original content producer. Now at worst, they can get a takedown notice.

I will admit that it is rather ironic that the DMCA allows companies to be unwittingly used as copyright infr

Imagine a world without the DMCA, where videos mocking the business school graduates and advertising people who came up with 'Web 2.0' could have discredited it and left it dead on the vine. Imagine all the dancing bears, freed from their pointless jobs of serving Web 2.0 applications for no other reason than to make the demo look interesting. Imagine a world where IP lawyers have to actually win their case to get paid, instead of being 'big stick' used by people to harass those who cannot afford to have su

You never had fair use rights in the US. You only ever had an affirmative defence. The distinction is rather significant in cases like this.

Not that I agree with the anti-circumvention principle, but if you're going to make an argument about the legal situation, I suggest that it will normally be more credible if you start from where we are and not where you'd like us to be.

The article contains a serious flaw in logic. Given the legal environment of the DMCA, if the internet we have now is a Good Thing, then how does that imply that the DMCA is the cause, without considering how much potentially better things could have been instead?

This kind of false rationalization is neither legitimate news reporting, nor is it respectful of those who have fought against the abuses of a poorly conceived and implemented law.

After all, it's a bit like saying that because my car got towed yesterday, I wasn't able to get into a car accident. That I had no car to wreck does not mean I am better off for having it towed--in fact, it is very probable the time and money I spent to retrieve it could have gone to something much more rewarding and useful.

I have to really wonder about this. The DMCA only applies within US borders. Piracy is alive and well. There is thepirate bay, somewhat lame video sites tudou.com and youku.com, and I can still find a ton of infringing material on Youtube. I can't for example upload a 20 second clip that Sony owns an interest in without it getting pulled based on keywords. I've had to deal with offline storage sites that to be fair take a takedown notice as license to terminate an account period without resolve.

Without the DMCA I have to wonder if the web would still be the wild wild west of 2000, and if so would it actually be better. Piracy is pretty damn good advertising.

The MPAA's Attaway, who calls himself the lobbying group's "old man" for his 33 years of service, recalls that the DMCA was a compromise from the start.
"The ISPs wanted safe harbor provisions in return for their support for the anti-circumvention provisions, which was one of the major and most important compromises in this legislation," he says. "It's not perfect. But it's better than nothing."

This MPAA lawyer speaks of a compromise between themselves and ISPs. As if they are the only parties involved.

What about the 300 million actual human bodies that the politicians are supposed to represent? Attaway knows what the MPAA and the ISPs wanted. Does he have a clue what the actual human beings wanted? Did congress?

Evidently the MPAA has successfully convinced Washington that those humans should be considered as "customers" and not "voters".

And it's not just the anti-circumvention clause. It's also the lack of any real penalties for sending bad-faith takedown notices, the requirement that takedowns must be assumed valid until proven invalid (and content must be taken down immediately upon receiving), and the lack of reliable protection for fair-use.

In fact, the entire law is a crapshoot. Safe harbor is the only thing they got right, and even then, you can't say that this "saved the Web" and brought about

TFA is a total fallacy, there is not even a weak attempt at justifying the conclusionthat the DMCA has had any sort of beneficial effects on technology, much less"catalyzing the interactive '2.0' web".

There is as much of a cause/effect relationship between the two asthere is between the DMCA being enacted and my balls growing gray hairs the same year.

They aren't talking about interactive technology, they are talking about sites where users interact with each other by uploading content. If a site was on the hook for infringing material uploaded by their users then no site would be able to publish something without first vetting it. A site like YouTube couldn't exist, there is no possible way to clear hundreds of thousands of videos uploaded daily by people all over the world. All you would have are sites that publish exclusively from "content partners

Right you are. The only part about fair use in the DMCA is that it (allegedly) doesn't change it any.

Thought it does leave abuse-prone Notice & Takedown problems. Granted, the Safe Harbor in the law _is_ a huge help and I wouldn't want to give that up. But that doesn't mean that the Takedown procedures shouldn't be reformed (or removed).

So there's really only one good part of it: the Safe Harbor. If you ditched the rest of the bill tomorrow, I doubt anyone but the MAFIAA would miss it.

Without the DMCA, those (media) companies would have had to file lawsuits that would have quickly and explicitly carved out the limits of fair use, which would be good for us and not for them.

Without the DMCA, there wouldn't be any photo or video sharing sites, for instance. Every time one of their users lost one of those lawsuits the site would be on the hook for secondary infringement. Nobody would take that kind of risk. Sites would only publish stuff from "content partners" they could trust or maybe

>Without the DMCA, those (media) companies would have had to file lawsuits that would have quickly and explicitly carved out the limits of fair use, which would be good for us and not for them.

I'm not sure I would trust the courts to make the right decisions about fair use when it comes to the Internet.

From the bits and pieces of US court rulings I've heard since the Internet gained popularity (~1993 to present), I've noticed a trend: When US courts are faced with cases involving technology they don't understand the details of, they sometimes ignore the existing well-established law that anyone familiar with the technology could see was obviously relevant and instead toss a coin and follow one party or another's 'creative' (i.e. off-the-wall) theories without anyone providing substantial arguments in support of any of the theories.

I can't remember every unquestioningly-accepted theory that has led me to this conclusion, but off the top of my head, the highlights are:- Treating domain names as property- Applying trademark restrictions to queries (e.g. DNS lookups and web searches)- Deeming linking to a document to be the same as copying or distributing it- More generally, assigning responsibility for actions automatically carried out by a computer to [any of: the computer's owner, operator, designer, manufacturer, programmer] without suggesting negligence or giving any other reason for this at all

In any case, all of this means that I'm a little uncertain where (or in what ballpark) a US court would put the boundaries for fair use on the Internet. =)

I'm not saying that the DMCA is the answer (it's about 180 degrees from it), but I think another law clarifying things for the courts was (and still is?) what is needed.

Er... I meant to say that another law clarifying things for the courts is needed _in_the_US_. If you happen to live in a country where courts seem to be able to understand the details of new technology and figure out how existing law applies to it (*cough* http://yro.slashdot.org/article.pl?sid=08/10/27/2134214 [slashdot.org] *cough*) then no special laws plz.

He said "fair use" but he very obviously meant the Safe Harbor provision.

The DMCA did not give us, the end users, any benefit that I can see.

So you've never used YouTube, Flikr, etc.? Because they would all be shut down (ala. Napster) for contributory copyright infringement as soon as the first copyrighted and non-fair use material was uploaded to the respective sites.

Napster wasn't the only example, just the most well known and recognizable. Innu

I suppose this entire thread could be killed by an analogy to World War Two and Hitler.

If it wore not for Hitler we would have no nuclear energy or computers today because those where products of that war. Does this give WWII or the Nazis a Good Light? I hope not.

These things would have come about on their own. As would the concept of Safe Harber, if Fair Use was proven insufficient. But there is more damage from DMCA that remains. The concept of Fair Use, which was quite suitable for centuries has bee

Without the DMCA, those (media) companies would have had to file lawsuits against the (new) web 2.0 companies, which would have quickly bankrupted new companies that had yet to establish a solid business plan. It would not have carved out what fair use was, because the companies would not have fought it at all.

I can't tell which way was better. Also, hindsight is 20-20... I don't think anyone 10 years ago would have been able to predict torrents, the availability of bandwidth coupled with the availability o

I thought something had to be worthwhile before it could jump the shark. Or am I wrong on that?

I remember Wired coming out and me and a friend of mine were all gunned up for it. We thought it was going to be like a Blacklisted 411 or 2600 but geared toward the mainstream of technology. Instead when we got to the newsstand on that fateful day we found lame wanna-be tech that even Omni wouldn't cover wrapped up in a cheap Spin Magazine template.